United States Bankruptcy Court
Courtroom 613Chambers: (312) 435-5646Courtroom Deputy: (312) 435-5647
Annette McClendonCourtroom Deputy
Lauren HargroveLaw Clerk
Caitlin CahowLaw Clerk
Motions and Confirmation Hearings in Chapter 13 Cases:
Motions in Chapter 7 and 11 Cases:
Except as set forth below, all matters must be scheduled in accordance with the foregoing. The 11:00 a.m. oral argument time may only be scheduled by or with prior approval of the judge. Matters scheduled by parties on days where Judge Barnes is not sitting without prior leave of the court may be stricken or rescheduled by the court without prior notice to the parties.
The foregoing hearings, except for the 11:00 a.m. oral argument time, are summary in nature. Should the parties anticipate the need to present argument in excess of five (5) minutes or to present evidence, such parties must either contact the court in advance of the hearing to schedule an 11:00 a.m. oral argument time for the hearing, or appear at the foregoing hearing and request at that time to schedule an 11:00 a.m. oral argument time.
If the movant fails to appear at the scheduled hearing to present the motion, the hearing on the motion may be stricken or the motion may be denied for want of prosecution. Parties wishing to have the court consider the request made in a motion for which the hearing has been stricken must re-notice the motion for an appropriate hearing date.
Effective October 1, 2012, refer to GENERAL ORDER No. 12-01 regarding procedures for emergency motions.
A motion that may be heard on the court's regularly appointed motion call for such motions without immediate or irreparable harm is not an emergency motion and does not, by definition, qualify for an emergency hearing. Such motion should be presented on the court's normal call with, as appropriate, a request to shorten/limit notice.
A motion that may NOT be heard on the court's regularly appointed motion call for such motions without immediate or irreparable harm may qualify as an emergency motion. In order to so qualify, the movant must follow the procedures set forth in GENERAL ORDER No. 12-01 regarding what documents must be filed and how contact with chambers must be made.
As to documents to be filed, an Application to set an emergency hearing MUST be filed for a motion to be treated on an emergency basis. The underlying motion is attached as an exhibit to that Application and is only filed on the court's docket once a ruling on the application is made. The Application must "state reasons that the motion should be heard on an emergency basis and the proposed time frame for presentment of the emergency motion."
Note that simply stating that a deadline would be missed if not heard as an emergency is NOT sufficient grounds for the motion to be treated on an emergency basis. The Application must explain what circumstances prevented the movant from having the request heard on a nonemergency basis. Poor time management is not sufficient grounds to have a motion treated on an emergency basis, and Applications relying solely on such grounds will be denied. The merits of the underlying motion should NOT be discussed in the Application, unless directly germane to a determination on urgency of the Application.
Parties must not presume the unavailability of Judge Barnes to consider an Application based on published calendars alone, but must contact chambers at (312) 435-5646 or (312) 435-5647 to determine the court's availability (but only after filing the documents required by the General Order). Only after determining Judge Barnes’ unavailability or having tried and failed to contact chambers, should parties contact the Emergency Judge. Parties are reminded that pursuant to the General Order, when contacting chambers, they are not to discuss the substance of their request, only to notify chambers of the existence of the Application and confirm its availability to consider the Application.
For all contested matters (as defined in Bankruptcy Rule 9014), the motion or request must be served in compliance with Rule 7004. Corporations must be served as required under Rule 7004(b)(3) on an officer, managing or general agent, or on any agent authorized by appointment or by law to receive service of process. Service of a corporation at a P.O. Box to which payments are sent is not sufficient under Rule 7004(b)(3).
Parties are reminded that they must also comply with Bankruptcy Rule 2002 regarding notice of motions and hearings.
Motions to continue the automatic stay in effect pursuant to 11 U.S.C. § 362(c)(3) or to impose the automatic stay under § 362(c)(4) must :
All motions for relief from the automatic stay must be accompanied by a fully completed Required Statement to Accompany All Motions for Relief From Stay , as required in by Local Rule 4001-1(A). Failure to submit the Required Statement will result in the motion being stricken without further notice from the court. Motions being so stricken are stricken without prejudice, but will require the payment in full of the applicable fee upon refiling of the motion.
The court will modify draft orders regarding relief from stay to remove language that (i) appears to grant movant permission or authority to act (as opposed to removing the restraints of the automatic stay), (ii) seeks to modify the movant’s requirements under Bankruptcy Rule 3002.1, (iii) seeks to relieve the stay as to a party other than the movant, (iv) seeking to grant movant leave to file or modify a claim, (v) seeks to allow movant fees or costs, (vi) seeks to bind a trustee upon conversion of the case, or (vii) is otherwise extraneous to the relief requested.
The court will waive the 14-day stay provided in Bankruptcy Rule 4001(a)(3) only if (i) the asset in question is a vehicle and there is an allegation of no insurance, (ii) the debtor has directly indicated its consent or has indirectly indicated its consent by indicating an intention to surrender the asset or failing to indicate an intention with respect to the asset, or (iii) the timing of a continued hearing on the motion or the effective date of the order provides the debtor with more than 14 days’ notice of effective date of the relief.
Parties are reminded that on motions for relief from the automatic stay in cases where a plan has been confirmed must allege post-confirmation grounds for relief.
An objection to a claim or a motion to disallow a claim is a “contested matter” under FRBP 9014, pursuant to which, the objection must be served in compliance with FRBP 7004. Service on a claimant at its notice address (per the Proof of Claim) does not necessarily comply with FRBP 7004.
Unless an objection to a claim or motion to disallow a claim rests on an invalidity regarding the claim's submission (e.g., late, unsigned, without required attachments, etc.), such objection or motion must be supported by admissible evidence sufficient to overcome the evidentiary effect of a properly documented proof of claim executed and filed in accordance with FRBP 3001. The evidence must demonstrate that the proof of claim should be disallowed, reduced, subordinated, re-classified, or otherwise modified. An unsigned and/or undated tax return offered to overcome an asserted state or federal tax claim is not sufficient unless accompanied by an affidavit, sworn under penalty of perjury, that demonstrates that the return was actually filed (and when it was filed).
Motions to modify a confirmed plan pursuant to 11 U.S.C. § 1329 must:
The court will not approve an application to be employed as counsel for a Chapter 11 debtor in possession unless either (1) the applicant has had experience representing a debtor in a previous Chapter 11 case in which the debtor's plan was confirmed, or (2) an attorney who has had such experience will serve as co-counsel with the applicant. See In re Doors and More Inc., 126 B.R. 43, 45-46 (Bankr. E.D. Mich. 1991).
Cases filed under Chapters 7, 11 and 12:
All attorneys or other professionals in cases filed under Chapters 7, 11 and 12 seeking approval of their fees must submit an itemization of their time in tenths of an hour and in the format required under Local Rule 5082-1.
Cases filed under Chapter 13:
All attorneys seeking approval of their fees in Chapter 13 cases must file an application with an itemization of their time in tenths of an hour, unless a flat fee is authorized pursuant to Local Rule 5082-2. Pursuant to Local Rule 5082-2, all requests for awards of compensation to debtor’s counsel in Chapter 13 cases must be made using the Form Fee Application, which must be accompanied by a completed Form Fee Order specifying the amounts requested. Local Rule 5082-2 also requires attorneys to attach the Creditor Meeting Notice if the attorney is relying on such for notice, and the fully executed Court Approved Retention Agreement if one was used. If the Creditor Meeting Notice does not seek the same amount of compensation as the application, then the attorney must provide all parties with 21-day notice as provided in Bankruptcy Rule 2002(a). Counsel are reminded that Local Rule 5082-2 requires applications for compensation to be noticed for hearing on the Original Confirmation Date. Counsel are notified of and subject to Judge Barnes' Standing Order No. 2 - Applications for Compensation in Chapter 13 Cases.
Counsel who have been advised by the court of an issue with their compensation but have failed to correct the issue within the time afforded them by the court or, if no deadline has been set, within thirty (30) days of being so advised, do so at their own risk. The court may thereafter strike the application, award compensation at the lower of any conflicting requests or deny the application with or without prejudice.
Motions pursuant to 11 U.S.C. § 350 and Bankruptcy Rule 5010 to reopen a Chapter 7 case in order to file the debtor's certification required by Bankruptcy Rule 1007(b)(7) must attach Official Form B23 and Education Certificate and set forth the reason the certification was not filed before the case was closed and that the fee to reopen the case has been paid.
The proposed order attached to the motion shall state that:
Pursuant to FRBP 7058, FRCP 58 applies in adversary proceedings. FRCP 58(a) requires that "every judgment and amended judgment must be set out in a separate document." FRCP 58(a) sets forth a list of motions that do not require a separate order from the judgment. That list does not include motions for default judgment. Thus, in order to comply with FRBP 7058 and LBR 9013-1(C)(5) (which requires each motion to have an accompanying proposed order), a motion for default judgment must be accompanied by 2 orders: (a) an order granting the motion for default judgment; and (b) a judgment order.
Motions for default judgment must also be accompanied by: (1) an affidavit establising the default per FRBP 7055(a); (2) if the complaint is not verified, an affidavit establishing the truth of the allegations in the complaint upon which judgment is sought per FRBP 7055(b)(2)(C); and (3) as applicable, an affidavit establishing compliance with the Servicemembers Civil Relief Act, including an attached Status Report generated in accordance with such Act.
Motions for relief from the automatic stay with respect to vehicles that comply with the Bankruptcy Rules, the Local Rules and the Administrative Procedures, where (1) movant alleges no insurance on the vehicle and (2) the debtor has (a) in a case under chapter 7, stated its intention to surrender the vehicle or failed to state its intention with respect to the vehicle or (b) in a case under chapter 13, filed a chapter 13 plan that calls for surrender of the vehicle or failed to file a chapter 13 plan addressing the vehicle, will be listed as “Will Be Granted Without a Hearing” on the call sheet for the hearing date.
Chapter 7 motions for relief from the automatic stay with respect to real or personal property that comply with the Bankruptcy Rules, the Local Rules and the Administrative Procedures and where (1) movant alleges a security in the property and that (a) the debtor has no equity in the property based on the debtor’s schedules or (b) the debtor has stated its intention to surrender the property or failed to state its intention with respect to the property and (2) the Chapter 7 trustee has filed a “no asset” report in the case, will be listed as “Will Be Granted Without a Hearing” on the call sheet for the hearing date.
Chapter 7 motions for relief from the automatic stay with respect to real or personal property that comply with the Bankruptcy Rules, the Local Rules and the Administrative Procedures and where (1) movant alleges a security in the property and that (a) the debtor has no equity in the property based on the debtor’s schedules or (b) the debtor has stated its intention to surrender the property or failed to state its intention with respect to the property and (2) the Chapter 7 trustee has not filed a “no asset” report in the case, will be listed as “Will Be Granted Without a Hearing” on the call sheet for the hearing date, but the order granting such motion will be made effective seven (7) days from the date of the scheduled Section 341 meeting or seven (7) days from the hearing date, whichever is later in time.
Chapter 13 motions for relief from the automatic stay with respect to real or personal property that comply with the Bankruptcy Rules, the Local Rules and the Administrative Procedures and where movant alleges a security in the property and that the debtor’s chapter 13 plan calls for surrender of the property or failed to file a plan addressing the property, will be listed as “Will Be Granted Without a Hearing” on the call sheet for the hearing date.
Chapter 13 plans without unresolved objections may be listed as “Will Be Granted Without a Hearing” on the call sheet for the confirmation hearing date if, prior to the hearing, the Chapter 13 Trustee has indicated its recommendation of the Chapter 13 plan prior to the confirmation hearing. Compensation for counsel on such plans, (i) if properly filed and noticed, (ii) for which, if applicable, a fully-executed court authorized retention agreement is filed, and (iii) for which the court has identified no missing attachments, no inconsistencies in compensation requested or no other irregularities, may also be listed as “Will Be Granted Without a Hearing” on the Court Calendar for the confirmation hearing date.
Motions to approve modifications of existing loans where no new collateral is being provided will be listed as “Denied Without a Hearing” on the call sheet for the hearing date. However, the order denying the motion to approve the modification will reflect the court’s belief that “[t]here is no provision of the Bankruptcy Code that calls for the Court to approve a modification of an existing loan agreement. The parties are free to go forward with the transaction without Court approval.”
Routine motions (as defined in Local Rule 9013-9), whether or not identified as a routine motion by the defendant, and other motions to which no objection is expected that comply with the Bankruptcy Rules, the Local Rules and the Administrative Procedures may be listed as “Will Be Granted Without a Hearing” on the Court Calendar for the hearing date.
The effect of listing as “Will Be Granted Without a Hearing”:
How to check whether a motion “Will Be Granted Without a Hearing”:
Otherwise, all motions are heard in open court.
Except in the instance of a demonstrable emergency as approved by the court, all requests for telephonic participation must be made to chambers and approved at least two (2) business days before the hearing in which telephonic participation is sought. Telephonic participation will not be approved for longer, more involved matters, evidentiary hearings of any kind, or oral arguments. The court's technology is not able to accommodate multiple parties in a case unless those parties arrange to conference each other in before participation in the hearing. In absence of such arrangements, telephonic participation will be permitted to a single party in each case on a first-come, first-served basis. Counsel appearing telephonically must call from a land-line telephone and must use a handset or headset. Speaker phones and cell phones may not be used.
Parties who appear by telephone do so at their own risk. Without prior exception by the court, parties appearing by telephone are monitoring proceedings only. They may not argue or testify. Such parties must keep their phones on “mute” other than to make their appearance and unless and until addressed by the court. Parties who appear by telephone assume the risk of all technical difficulties, including, but not limited to, the inability to hear or be heard and disconnection. The court will generally not seek to reconnect parties who have been disconnected.
For applications for compensation in a Chapter 11, the court requires two (2) physical copies of be delivered to the Courtroom Deputy contemporaneously with the filing thereof and no less than fourteen (14) days prior to the hearing thereon. The courtesy copies must include any attachments, exhibits, itemizations, etc., and a proposed order.
For “mega” Chapter 11 cases, the court requires two (2) physical sets of motions and one (1) electronic set of motions be delivered to the Courtroom Deputy no less than forty-eight (48) hours in advance of the “first day hearing” on such motions. If a demonstrable emergency exists, less than forty-eight (48) hours will be accepted, but parties should strive to give the court as much notice as possible.
For filings in excess of one hundred (100) pages (inclusive of exhibits), the court requires two (2) physical copies of be delivered to the Courtroom Deputy contemporaneously with the filing thereof.
Otherwise, no courtesy copies are required unless specifically requested by the court.
All motions must be accompanied by a proposed, draft order filed on ECF along with the motion. The Administrative Rules require such orders to be submitted in Fillable Form Orders . Parties who fail to comply with the Fillable Form Order requirements may have the motion stricken for noncompliance with the Local Rules.
The following will be counted as exceptions to the Fillable Form Order requirement:
When a motion has been heard by the court and the party seeking relief is to present a draft order after the hearing (such draft order to follow, a “DOTF”), the motion may be denied if the DOTF is not received in Judge Barnes’ chambers within fourteen (14) calendar days of the hearing on the motion, or such other time as ordered by the court when the DOTF is ordered by the court.
The Courtroom Deputy maintains a separate email for the submission of DOTFs so that parties may comply with the Fillable Form Order requirement for such orders.
When a motion has been heard by the court and the party seeking relief is to present a draft order after the hearing (such draft order to follow, a “DOTF”), the motion may be denied if the DOTF is not received in Judge Barnes’ chambers within fourteen (14) calendar days of the hearing on the motion, or such other time as ordered by the court.
The Courtroom Deputy maintains a separate email address for the submission of DOTFs so that parties may comply with the Fillable Form Order requirement for such orders. DOTFs may be delivered by that email address or delivered physically to chambers. DOTFs filed on the docket of the case will not be considered.
When a DOTF is delivered via email, the following conditions must be satisfied:
DOTFs are subject to the same conditions of Orders in general. Failure to abide by any of the foregoing may result in the order being rejected.
Please note that unless specifically authorized by the court, the DOTF email box must not be used for communication purposes other than the delivery of DOTFs in the manner set forth above. Use of the DOTF email for other purposes without leave of the court may result in sanctions.
Discussed in open court on a case by case basis.
Pursuant to trial order entered and/or discussed in open court.
In lieu of the provisions of Local Rule 9060-3, when another Judge has referred a case to Judge Barnes for mediation, the following guidelines will apply:
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